[ v01 p1055 ]
01:1055(120)MS
The decision of the Authority follows:
1 FLRA No. 120
U.S. DEPARTMENT OF LABOR
Respondent
and
HAZEL M. LYONS
EARL S. SIMPSON
CHARLES F. WOOD
JAMES W. TAYLOR
CALVIN L. COPELAND
Complainants
CSC Case Nos. 88, 91-94
(Consolidated)
DECISION AND ORDER
ON DECEMBER 14, 1978, ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT THE
COMPLAINTS BE DISMISSED IN THEIR ENTIRETY. THEREAFTER, THE COMPLAINANTS
FILED TIMELY EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER, AND THE RESPONDENT FILED A RESPONSE TO THE
COMPLAINANTS' EXCEPTIONS.
SINCE THIS CASE INVOLVES THE U.S. DEPARTMENT OF LABOR AS A PARTY, IT
WAS INITIATED AND PROCESSED PURSUANT TO SECTION 6(E) OF EXECUTIVE ORDER
11491, AS AMENDED, AND WAS PENDING BEFORE THE VICE CHAIRMAN OF THE U.S.
CIVIL SERVICE COMMISSION THEREUNDER ON DECEMBER 31, 1978. ON THAT DATE,
THE FUNCTIONS OF THE VICE CHAIRMAN UNDER E.O. 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE
RESPONDENT'S RESPONSE THERETO, THE AUTHORITY HEREBY ADOPTS THE FINDINGS,
CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE ONLY TO
THE EXTENT CONSISTENT HEREWITH. /1/
EACH OF THE COMPLAINTS IN THE INSTANT CASE ALLEGED, IN SUBSTANCE,
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2) AND (4) OF THE ORDER
BY REPRIMANDING THE COMPLAINANTS FOR ENGAGING IN WHAT THE RESPONDENT
CHARACTERIZED AS AN "IMPROPER DEMONSTRATION IN THE OFFICE OF THE
SECRETARY (OF LABOR)" AND BY PLACING THEM ON AWOL (ABSENT WITHOUT LEAVE)
STATUS FOR "IMPROPER ABSENCE" FROM THEIR WORKSITES.
THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT, IN ABSENTING THEMSELVES
WITHOUT PERMISSION FROM THEIR WORKSITES AND ASSEMBLING IN THE
SECRETARY'S OFFICE, THE COMPLAINANTS WERE NOT ENGAGED IN THE EXERCISE OF
RIGHTS ASSURED BY THE ORDER. HE DETERMINED THAT, IN REPRIMANDING THE
COMPLAINANTS FOR SUCH CONDUCT, THE RESPONDENT DID NOT ACT OUT OF
ANTIUNION ANIMUS AND THAT THERE WAS NO DISCOURAGEMENT OF UNION
MEMBERSHIP. FURTHER, THE ALJ DETERMINED THAT THE RESPONDENT DID NOT
VIOLATE SECTION 19(A)(4), SINCE IT DID NOT DISCIPLINE THE COMPLAINANTS
FOR FILING A COMPLAINT OR GIVING TESTIMONY UNDER THE ORDER.
ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT
HAD NOT VIOLATED SECTION 19(A)(1), (2) OR (4) OF THE ORDER AND
RECOMMENDED THAT EACH OF THE COMPLAINTS BE DISMISSED.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY
CONCLUDES THAT THE SUBJECT COMPLAINTS SHOULD BE DISMISSED. IN SO
CONCLUDING, THE AUTHORITY PARTICULARLY NOTES THE FINDING OF THE
ADMINISTRATIVE LAW JUDGE THAT THE COMPLAINANTS WERE DISCIPLINED FOR
IMPROPER ABSENCE FROM THEIR WORKSITES WHEN THEY GATHERED IN THE OFFICE
OF THE SECRETARY OF LABOR. UNDER THESE CIRCUMSTANCES, THE COMPLAINANTS
HAVE FAILED TO ESTABLISH THAT THE RESPONDENT VIOLATED SECTION 19(A)(1),
(2) AND (4) OF THE ORDER BY REPRIMANDING THEM AND PLACING THEM ON AWOL
STATUS FOR SUCH CONDUCT.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CSC CASE NOS. 88, 91-94
(CONSOLIDATED) BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 28, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /2/
IN THE MATTER OF AN UNFAIR LABOR PRACTICE
COMPLAINT FILED BY:
HAZEL M. LYONS
EARL S. SIMPSON
CHARLES F. WOOD
JAMES W. TAYLOR
CALVIN L. COPELAND
COMPLAINANTS
U.S. DEPARTMENT OF LABOR
RESPONDENT
RECOMMENDED DECISION
BY ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY
WITH APPEARANCES BY:
DEBORAH R. SCHULMAN, ESQUIRE, FOR THE RESPONDENT
RUSSELL E. BINION, PRESIDENT OF LOCAL 12, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, FOR THE COMPLAINANTS
STATEMENT OF THE CASE
THE COMPLAINANTS IN THIS PROCEEDING ALLEGE THAT THE DEPARTMENT OF
LABOR (DOL) HAS COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION
19(A)(1), (2) AND (4) OF EXECUTIVE ORDER 11491, AS AMENDED (ORDER) /3/
BECAUSE THE COMPLAINTS INVOLVE THE DOL, THESE PROCEEDINGS ARE BEFORE THE
CIVIL SERVICE COMMISSION, SECTION 6(E) OF THE ORDER.
THE COMPLAINANTS CONTEND THAT DOL VIOLATED THE ORDER BY REPRIMANDING
EACH OF THEM FOR PARTICIPATING IN WHAT DOL CHARACTERIZES AS AN "IMPROPER
THAT DOL VIOLATED THE ORDER BY REPRIMANDING THEM FOR "IMPROPER ABSENCE"
FROM THEIR WORKSITES AND BY PLACING THEM ON ABSENCE WITHOUT LEAVE (AWOL)
STATUS. THESE REPRIMANDS WERE ISSUED MAY 20, 1977. EACH COMPLAINANT
FILED A SEPARATE COMPLAINT. BECAUSE THE COMPLAINTS ARISE FROM A COMMON
SET OF FACTS, THEY HAVE BEEN CONSOLIDATED.
FINDINGS OF FACT
ALTHOUGH DOL REPRIMANDED THE COMPLAINANTS ON MAY 20, 1977, DOL'S
ACTION CAN BE UNDERSTOOD ONLY IN LIGHT OF A SERIES OF EVENTS BEGINNING
MONTHS BEFORE THAT DATE. CONSEQUENTLY, AN EXTENSIVE STATEMENT OF THE
FACTS PROVEN AT THE HEARING IS NECESSARY.
THERE ARE FIVE COMPLAINANTS. THE FOLLOWING CIRCUMSTANCES EXISTED AT
ALL RELEVANT TIMES. EACH COMPLAINANT BELONGED TO LOCAL 12 OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE), THE EXCLUSIVE
REPRESENTATIVE OF DOL EMPLOYEES IN THE WASHINGTON, D.C. METROPOLITAN
AREA. CALVIN COPELAND WORKED IN THE DOL PRINT SHOP AND WAS SHOP
STEWARD. EARL SIMPSON AND JAMES TAYLOR WORKED IN THE DOL OFFICE OF THE
ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT (OASAM),
DEPARTMENTAL COMPUTER CENTER. EARL SIMPSON WAS CHIEF STEWARD FOR OASAM,
AND JAMES TAYLOR WAS A SHOP STEWARD. HAZEL LYONS WORKED IN THE DOL
LABOR MANAGEMENT SERVICES ADMINISTRATION. SHE WAS A MEMBER OF LOCAL
12'S EXECUTIVE COMMITTEE. CHARLES WOOD WORKED IN THE DOL OFFICE OF
INFORMATION AND WAS ALSO A STEWARD.
IN OCTOBER OF 1976, EARL SIMPSON ASSISTED DOL EMPLOYEE SYLVIA PRINCE
IN FILING A GRIEVANCE BASED ON HER SUSPENSION FROM DUTY. ON MARCH 22,
1977, FRED CLARK, DOL'S ASSISTANT SECRETARY FOR ADMINISTRATION AND
MANAGEMENT, NOTIFIED LOCAL 12 THAT SYLVIA PRINCE'S SUSPENSION WAS
CANCELLED, THUS MOOTING HER GRIEVANCE PROCEEDINGS. ON MAY 2, 1977,
HOWEVER, SYLVIA PRINCE WAS NOTIFIED THAT SHE WAS DISMISSED AND THAT SHE
HAD THE RIGHT TO APPEAL TO THE CIVIL SERVICE COMMISSION WITHIN 15 DAYS
OF MAY 6, THE EFFECTIVE DATE OF HER DISCHARGE.
UNEMPLOYED WHILE SHE APPEALED HER TERMINATION. THEREFORE, ON MAY 4,
1977, HE AND SYLVIA PRINCE WENT TO THE SECRETARY'S OFFICE TO GET AN
APPOINTMENT WITH THE SECRETARY REGARDING HER CASE. FRED CLARK'S
SECRETARY CALLED RONALD SCHELL, THE ASSISTANT TO THE ASSISTANT SECRETARY
FOR ADMINISTRATION AND MANAGEMENT FOR LABOR RELATIONS, TO FIND OUT WHY
EARL SIMPSON AND SYLVIA PRINCE WERE IN THE WAITING ROOM OF THE
SECRETARY'S OFFICE. SCHELL AND MATTHEW RAPHAEL, ANOTHER MEMBER OF THE
LABOR RELATIONS STAFF, MET SIMPSON AND PRINCE BETWEEN 11:00 A.M. AND
12:00 NOON. THE MANAGEMENT REPRESENTATIVES SUGGESTED THAT PRINCE APPEAL
TO THE CIVIL SERVICE COMMISSION. THEY ALSO CHECKED WITH PAUL JENSEN,
WHO HANDLED THE SECRETARY'S MEDIA APPOINTMENTS, ABOUT GETTING AN
APPOINTMENT. JENSEN SAID THE SECRETARY WOULD MEET WITH NEITHER PRINCE
NOR SIMPSON. SCHELL AND RAPHAEL RELAYED THAT INFORMATION TO SIMPSON AND
PRINCE, BUT THEY REMAINED IN THE SECRETARY'S WAITING ROOM UNTIL THE
CLOSE OF BUSINESS.
AGAIN SEEKING AN APPOINTMENT WITH THE SECRETARY, ON MAY 5, EARL
SIMPSON APPEARED IN THE SECRETARY'S OFFICE WITH SYLVIA PRINCE AND 16
SECRETARIES WHO WERE DISSATISFIED WITH WORKING CONDITIONS IN THE OFFICE
OF THE ADMINISTRATIVE LAW JUDGES. THE SECRETARY'S APPOINTMENT SECRETARY
SHARON SHAY TOLD THEM THAT THEY WOULD NOT BE ABLE TO SEE THE SECRETARY,
BUT THEY DID NOT LEAVE. RONALD SCHELL CONVINCED SIMPSON HOWEVER TO
BRING THE GROUP OF SECRETARIES TO A CONFERENCE ROOM. SCHELL, RAPHAEL
AND CLARK THEM MET WITH THE 18 APPOINTMENT SEEKERS. SOME PRODUCTIVE
RESULTS WERE ACHIEVED REGARDING THE SECRETARIES' COMPLAINTS; SYLVIA
PRINCE, HOWEVER, WAS ADVISED TO USE PROPER CHANNELS BECAUSE THE
SECRETARY WOULD NOT MEET WITH HER.
ON MAY 18 AND 19 DOL EMPLOYEE SARAH HARPER DISTRIBUTED COPIES OF
RESPONDENT'S EXHIBIT 1 (R-1) OUTSIDE THE DOL BUILDING. R-1 IS A
TWO-PAGE FLYER. ITS FIRST PAGE ALLEGES THAT SYLVIA PRINCE AND THE
ADMINISTRATIVE LAW JUDGES' SECRETARIES WERE VICTIMS OF "RACIST, SEXIST
DOWNGRADINGS." IT REFERS TO THE MAY 5 VISIT TO THE SECRETARY'S OFFICE AS
"A SIT-IN." IT REFERS TO ANOTHER SIT-IN ON MAY 11. /4/ ITS FINAL
PARAGRAPH STATES:
JOIN THE COMMITTEE AGAINST RACISM TO WORK WITHIN THE UNION TO FIGHT
RACISM WHEREVER IT
OCCURS. (COME TO THE UNION OFFICE ON FRIDAY, MAY 20TH AT 11 A.M. WE
WILL RALLY THERE BEFORE
GOING TO SEE SECRETARY MARSHALL AGAIN. TALK TO CO-WORKERS AND
ENCOURAGE THEM TO SIT IN AND
JOIN COMMITTEE AGAINST RACISM. FOR MORE INFORMATION CONTACT
797-9608.
THE SECOND PAGE GIVES GENERAL INFORMATION ABOUT THE COMMITTEE AGAINST
RACISM. SARAH HARPER, A STEWARD FOR THE DOL LIBRARY, WROTE PAGE ONE;
SHE WAS VERY ACTIVE IN LOCAL 12, SERVING, FOR EXAMPLE, AS CHAIRMAN OF
ITS ELECTION COMMITTEE. ON MAY 18, SHE CALLED THE SECRETARY'S OFFICE TO
SEE IF HE WOULD BE THERE ON MAY 20.
ON MAY 18, 1977, MANAGEMENT OFFICIALS ATTEMPTED TO CONVEY THEIR
CONCERN REGARDING A POSSIBLE SIT-IN ON MAY 20. JAMES ELMORE OF THE
LABOR RELATIONS STAFF TRIED TO CONTACT LOCAL 12'S PRESIDENT, RUSSELL E.
BINION. HE TELEPHONED SEVERAL TIMES, LEFT MESSAGES AND MADE A VISIT TO
THE UNION OFFICE WITHOUT SUCCESS. ON THE AFTERNOON OF MAY 19, HAZEL
LYONS CALLED ELMORE. SHE DID NOT SAY THAT THE UNION WOULD RESTRAIN THE
ACTIVITIES PROPOSED IN R-1, EXPLAINING THAT IF EMPLOYEES WISHED TO COME
TO THE UNION OFFICE TO DISCUSS RACISM THEY WERE FREE TO DO SO. IN
ADDITION TO ELMORE'S EFFORTS, MATTHEW RAPHAEL SPOKE TO EARL SIMPSON.
SIMPSON SAID THAT THE UNION WAS NOT SPONSORING THE MAY 20 ACTION, BUT
THAT SOME UNION OFFICIALS MIGHT PARTICIPATE. RAPHAEL WARNED HIM THAT A
REPRIMAND WOULD PROBABLY RESULT. MANAGEMENT, ON THE AFTERNOON OF MAY
19, HAND DELIVERED A LETTER TO BINION POINTING OUT THAT THE PROPOSED
SIT-IN COULD VIOLATE THE ORDER. THE LETTER SUGGESTED THAT THE UNION
SHOULD RESTRAIN SUCH ACTS. THERE IS NO PROOF THAT THE UNION DID ATTEMPT
TO DISCOURAGE OR PREVENT THE ACTS WHICH TOOK PLACE ON MAY 20. INDEED,
THE COMPLAINANTS' ACTIONS FURTHERED THE R-1 PROPOSAL.
CALVIN COPELAND ALSO SOUGHT THE SECRETARY'S ATTENTION BEFORE MAY 20.
ON APRIL 4, 1977, JEANETTE ROZZERO, A RECEPTIONIST IN THE SECRETARY'S
OFFICE RECEIVED A MEMORANDUM FROM CALVIN COPELAND TO THE SECRETARY
ENTITLED "SUBJECT: TEMPORARY QUALIFIED EMPLOYEES WHO WERE TERMINATED."
THE MEMO CONSISTS OF SIX BRIEF PARAGRAPHS GENERALLY EXPRESSING
CONFIDENCE IN THE NEW CARTER ADMINISTRATION; THE SEVENTH PARAGRAPH
READS AS FOLLOWS: "AS A UNION REPRESENTATIVE, I WOULD LIKE TO DISCUSS
THIS MATTER WITH YOU PERSONALLY, AND AT YOUR EARLIEST CONVENIENCE." THE
MEMORANDUM WAS REFERRED TO FRED CLARK, WHO SENT A RESPONSE TO CALVIN
COPELAND ON APRIL 23. HE NOTED THAT AN APPOINTMENT WITH THE SECRETARY
WOULD BE "INAPPROPRIATE" AND THAT REGULATIONS PRECLUDED REHIRING THE
INELIGIBLE TEMPORARY EMPLOYEES.
ON MAY 20, BY 11:00 A.M., EARL SIMPSON, JAMES TAYLOR, AND HAZEL LYONS
WERE IN THE UNION OFFICE. CHARLES WOOD HAD ARRIVED ONE HOUR EARLIER.
SIMPSON AND TAYLOR WERE PURPORTEDLY WORKING ON TAYLOR'S GRIEVANCE. /5/
COINCIDENTALLY, CHARLES WOOD AND HAZEL LYONS WERE PURPORTEDLY WORKING
ON
GRIEVANCES ALSO. /6/ BY ANOTHER COINCIDENCE, AT 11:00 A.M. CALVIN
COPELAND APPEARED IN THE SECRETARY'S OFFICE CLAIMING THAT HE HAD AN
11:00 O'CLOCK APPOINTMENT WITH THE SECRETARY. THE SECRETARY'S
RECEPTIONIST MRS. J. ROZZERO TESTIFIED ON THIS POINT:
Q WERE YOU IN THE OFFICE ON THE MORNING OF MAY 20, 1977, WHEN CALVIN
COPELAND CAME IN AT
ABOUT 11 O'CLOCK?
A YES, I WAS.
Q DID HE SPEAK TO YOU?
A YES, HE DID.
Q WHAT DID HE SAY?
A WHEN HE FIRST CAME INTO THE OFFICE HE WENT OVER TO THE RECEPTIONIST
FOR THE
UNDERSECRETARY SIDE AND SHE JUST DIRECTED HIM OVER TO ME. AT THAT
TIME HE SAID HE WAS HERE
FOR HIS APPOINTMENT WITH THE SECRETARY. MY SCHEDULE DID NOT REFLECT
ANY SUCH APPOINTMENT, SO
I ASKED HIM AT WHAT TIME HE THOUGHT HIS APPOINTMENT WAS. HE SORT OF
SMILED AND SAID, "WELL,
AROUND 11 O'CLOCK."
AT THAT TIME I SAID TO HIM THAT THE SECRETARY WAS IN A MEETING THAT
HE WAS NOT AVAILABLE TO
SEE HIM AND HE SAID, "WELL, IS HE IN A MEETING WITH THE OTHER UNION
MEMBERS?" I SAID, NO, HE
WAS NOT. HE SAID, WELL, HE WAS DOWN HERE TO SEE THE SECRETARY BEFORE
THE OTHER UNION MEMBERS
CAME DOWN.
Q HAD YOU RECEIVED ANY CALLS FROM MR. COPELAND OR ANY OF THE OTHER
COMPLAINANTS IN THIS
CASE REQUESTING AN APPOINTMENT WITH THE SECRETARY IN THE MORNING OF
MAY 20TH?
A NOT ON THAT MORNING, NO.
RONALD SCHELL WAS NOTIFIED OF COPELAND'S ACTIVITIES BY TELEPHONE.
FINDING HIMSELF ALONE IN THE SECRETARY'S OFFICE, COPELAND LEFT. HE
CLAIMS THAT HE RETURNED TO HIS WORKSITE AND THAT AT ABOUT 11:25 A.M. HE
TELEPHONED THE UNION OFFICE FROM THERE. /7/ HE ASKED HIS FELLOW
STEWARDS TO JOIN HIM. COPELAND THEN WENT DOWN TO THE UNION OFFICE AT
ABOUT 11:35 A.M. RONALD SCHELL AND JAMES ELMORE WENT TO THE SECRETARY'S
OFFICE AND FOUND NO STEWARDS THERE, SO THEY RETURNED TO THEIR OFFICE
ACROSS FROM THE UNION OFFICE. COPELAND AND TAYLOR WERE ALREADY ON THEIR
WAY TO THE SECRETARY'S OFFICE. THE OTHER THREE COMPLAINANTS LEFT A FEW
MINUTES LATER AND PASSED ELMORE AND SCHELL ON THEIR WAY. /8/ WITHIN A
FEW MINUTES THE FIVE COMPLAINING STEWARDS WERE IN THE SECRETARY'S OFFICE
ASKING TO SEE THE SECRETARY. ASSISTANT SECRETARY CLARK'S OFFICE WAS
NOTIFIED OF THEIR VISIT BY TELEPHONE. SEVERAL AGENCY OFFICIALS MET IN
CLARK'S OFFICE FOR ABOUT 20 MINUTES. BY THE TIME SCHELL AND TWO OTHER
AGENCY OFFICIALS WENT TO THE SECRETARY'S OFFICE, THE FIVE STEWARDS HAD
GONE.
MEANWHILE, THE STEWARDS HAD SPENT ABOUT 25 TO 30 MINUTES SITTING ON A
COUCH IN THE WAITING ROOM OF THE SECRETARY'S OFFICE. ALTHOUGH THEY WERE
TOLD THE SECRETARY WOULD NOT SEE THEM, THEY CAUSED NO DISRUPTION. A
SECURITY GUARD WAS CALLED TO THE OFFICE AS A PRECAUTIONARY MEASURE-- DOL
WAS GREATLY CONCERNED BECAUSE A CABINET LEVEL MEETING IN THE SECRETARY'S
OFFICE, SCHEDULED FOR 10:30 A.M., WAS STILL IN SESSION. THE STEWARDS
EVENTUALLY LEFT WITHOUT SEEING THE SECRETARY OR RECEIVING ANY
APPOINTMENT.
ABOUT ONE HOUR LATER, THE FIVE COMPLAINANTS WERE SUMMONED TO A
CONFERENCE ROOM WHERE THEY RECEIVED THEIR WRITTEN REPRIMANDS FOR
ALLEGED
VIOLATIONS OF THE ORDER AND FOR IMPROPER ABSENCE FROM THEIR WORKSITES.
IN THE REPRIMANDS DOL ALLEGED THAT COPELAND WAS ABSENT FROM 11:00 A.M.,
TO 12:30 P.M., THAT LYONS WAS ABSENT FROM 11:00 A.M. TO 1:00 P.M., THAT
SIMPSON WAS ABSENT FROM 11:00 A.M. TO 1:30 P.M., THAT WOODS WAS ABSENT
FROM 10:00 A.M. TO 1:30 P.M., AND THAT TAYLOR WAS ABSENT FROM 11:00 A.M.
TO 1:30 P.M. DOL PLACED COPELAND AND LYONS ON ONE HOUR AWOL STATUS,
SIMPSON AND TAYLOR ON TWO HOURS AWOL STATUS, AND WOOD ON THREE HOURS
AWOL STATUS. DOL DISCIPLINED THE COMPLAINANTS BECAUSE THEY CONGREGATED
IN THE SECRETARY'S OFFICE WITHOUT AN APPOINTMENT IN ORDER TO DISCOURAGE
SUCH ACTIVITY IN THE FUTURE.
CONCLUSIONS OF LAW
THE COMPLAINANTS MUST PROVE EACH OF THE THREE ALLEGED VIOLATIONS OF
THE ORDER BY A PREPONDERANCE OF THE EVIDENCE. 29 C.F.R. 204.15(1977)
THEY HAVE FAILED TO CARRY THEIR BURDEN ON ANY OF THE THREE CHARGES.
I. SECTIONS 19(A)(1) AND 19(A)(2)
IT IS WELL SETTLED THAT VIOLATIONS OF SECTION 19(A)(1) OR 19(A)(2)
ARE NOT PROVEN UNLESS THE COMPLAINANTS SHOW THAT THE AGENCY ACTED WITH
AN ANTI-UNION ANIMUS. E.G., PUGET SOUND NAVAL SHIPYARD, DEPARTMENT OF
THE NAVY, BREMERTON, WASHINGTON, A/SLMR NO. 768; PUGET SOUND NAVAL
SHIPYARD, DEPARTMENT OF THE NAVY, BREMERTON, WASHINGTON, A/SLMR NO. 710.
CONCEDEDLY, EACH COMPLAINANT WAS FIRST REPRIMANDED AS A UNION MEMBER
FOR COMMITTING AN UNFAIR LABOR PRACTICE. /9/ THE EVIDENCE, HOWEVER,
OVERCOMES ANY INFERENCE OF ANTI-UNION ANIMUS SUGGESTED ON THE FACE OF
THE FIRST PART OF EACH REPRIMAND. MANAGEMENT'S ANIMUS WAS AGAINST
DEMONSTRATIONS AND DISRUPTIONS IN THE SECRETARY'S OFFICE. THERE WAS NO
DISCOURAGEMENT OF UNION MEMBERSHIP. INDEED, MANAGEMENT ATTEMPTED TO
WORK WITH THE UNION TO PREVENT A DEMONSTRATION ON MAY 20, 1977. PUT
ANOTHER WAY, COMPLAINANTS FAILED TO PROVE THAT NON-UNION WORKERS
COMMITTING THE SAME ACTS WOULD HAVE BEEN TREATED MORE FAVORABLY SOLELY
BECAUSE OF NON-UNION STATUS. SEE TENNESSEE VALLEY AUTHORITY, A/SLMR NO.
509. THUS, A VIOLATION OF NEITHER SECTION 19(A)(1) NOR SECTION 19(A)(2)
HAS BEEN PROVEN. /10/
AS TO THE SECTION 19(A)(1) CLAIM, THE COMPLAINANTS ALSO FAILED TO
PROVE THAT THEIR ATTEMPT TO MEET THE SECRETARY IN HIS OFFICE CONSTITUTED
"THE EXERCISE OF RIGHTS ASSURED BY (THE) ORDER." NOWHERE DOES THE ORDER
GIVE EMPLOYEES THE RIGHT TO AN AUDIENCE WITH THE HEAD OF THEIR AGENCY--
EMPLOYER. CONSIDERING THE NUMBER OF PEOPLE THAT FEDERAL AGENCIES
EMPLOY, GRANTING THAT RIGHT TO EMPLOYEES WOULD BE ABSURD.
SOME OF THE COMPLAINANTS ATTEMPTED TO SHOW THAT THEY MET IN THE
SECRETARY'S OFFICE ON THEIR LUNCH HOURS AND THAT DISCIPLINARY ACTION
BASED ON UNAUTHORIZED ABSENCE WAS THEREFORE UNJUSTIFIED. THERE ARE
CASES WHICH HOLD THAT AGENCY EMPLOYERS VIOLATE SECTION 19(A)(1) IF THEY
RESTRAIN TALK REGARDING UNIONS DURING LUNCH HOURS AND OTHER OFF-DUTY
BREAKS. SEE DEPARTMENT OF THE AIR FORCE, OFFUTT AIR FORCE BASE, A/SLMR
NO. 784; FEDERAL ENERGY ADMINISTRATION, REGION VI, ATLANTA, GEORGIA,
A/SLMR NO. 541; CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1. THESE CASES
ARE OF NO AID TO COMPLAINANTS, SINCE THEY DEAL WITH EFFORTS TO LIMIT
TALK AMONG EMPLOYEES, A RIGHT ASSURED BY THE ORDER. ATTEMPTS TO LIMIT
TALK AMONG EMPLOYEES WERE NOT PROVEN HERE, AND TALKING TO THE HEAD OF AN
AGENCY IS NOT A RIGHT ASSURED BY THE ORDER.
MOREOVER, COMPLAINANTS CANNOT SUCCESSFULLY USE THE LUNCH-BREAK THEORY
TO PROVE THAT THE DISCIPLINARY ACTION TAKEN CONSTITUTED AN UNFAIR LABOR
PRACTICE. EACH REPRIMAND ALLEGES THAT THE EMPLOYEE WAS ABSENT FOR A
PERIOD AT LEAST 30 MINUTES LONGER THAN THE PERIOD FOR WHICH THE EMPLOYEE
IS ACTUALLY CHARGED WITH BEING AWOL. IT IS IMPLICIT IN THESE REPRIMANDS
THAT DOL DID NOT CHARGE COMPLAINANTS FOR BEING AWOL ON THEIR LUNCH
BREAKS.
REGARDING THE AWOL REPRIMANDS, COMPLAINANTS ALSO CONTEND THAT THEY
WERE PROPERLY ABSENT FROM THEIR WORKSITES AT ALL TIMES. THEY HAVE
OFFERED TESTIMONY THAT COPELAND HAD AN APPOINTMENT WITH THE SECRETARY IN
WHICH HE INVITED THE OTHER FOUR TO JOIN AND THAT THOSE FOUR WERE THEN
WORKING ON GRIEVANCES AT THE UNION OFFICE. BASED ON THE RECORD AS A
WHOLE AND THE DEMEANOR OF THE WITNESSES, I REJECT THESE CONTENTIONS.
COPELAND'S TESTIMONY REGARDING AN APPOINTMENT WAS CONFUSED,
SELF-CONTRADICTORY, AND CONTRARY TO THAT OF THE OTHER COMPLAINANTS AS
WELL AS HIS OWN COMPLAINT. IN LIGHT OF THE TESTIMONY OF THE SECRETARY'S
SECRETARIAL STAFF, AND THE PRIOR REJECTIONS BY DOL OF MEETINGS BETWEEN
THE SECRETARY AND SIMPSON, COPELAND, AND OTHERS, I FIND COPELAND DID NOT
HAVE AN APPOINTMENT AS HE CLAIMED AND THAT THE OTHER COMPLAINANTS DID
NOT BELIEVE HE HAD AN APPOINTMENT WITH THE SECRETARY.
AS TO THE PRESENCE OF THE OTHER FOUR COMPLAINANTS IN THE UNION
OFFICE, TAYLOR AND SIMPSON GAVE EQUIVOCAL AND CONTRADICTORY EVIDENCE
REGARDING WHOSE GRIEVANCES WERE BEING HANDLED AND WHEN. ONE MUST ALSO
CONSIDER THE PRIOR EVENTS IN THE SYLVIA PRINCE AFFAIR, SIMPSON'S
SUGGESTION TO MANAGEMENT THAT SOME UNION OFFICIALS MIGHT SIT-IN AT THE
SECRETARY'S OFFICE, THE COINCIDENTAL CONGREGATION OF THE FOUR
COMPLAINING STEWARDS IN THE UNION OFFICE ON MAY 20, 1977, AT 11:00 A.M.,
AND THE GENERAL CONFORMITY OF THE COMPLAINANTS' ACTS TO THOSE ADVOCATED
BY R-1. THIS STRONG CIRCUMSTANTIAL EVIDENCE SUPPORTS THE CONCLUSION
THAT COMPLAINANTS MET IN THE UNION OFFICE TO CARRY OUT THE INTENT OF
R-1. THE TESTIMONY CONCERNING THE BEHAVIOR AND STATEMENTS OF COPELAND,
SIMPSON AND LYONS WITH RESPECT TO THE CALL FOR ACTION AS EXPRESSED IN
THE FLYER (R-1) DISTRIBUTED BY SARAH HARPER, A UNION STEWARD, IS
ESPECIALLY SIGNIFICANT IN REACHING THIS CONCLUSION. THE EVENTS OF MAY
20, 1977 APPEARED TO BE A NATURAL PROGRESSION FROM THE EARLIER VISITS TO
THE SECRETARY'S OFFICE ON BEHALF OF SYLVIA PRINCE. ACCORDINGLY, I FIND
THE COMPLAINANTS HAVE NOT MET THEIR BURDEN OF PROVING AN UNFAIR LABOR
PRACTICE, SINCE PREPARING TO SIT-IN AT THE SECRETARY'S OFFICE IS NO MORE
PROTECTED UNDER THE ORDER THAN SITTING-IN IS.
BECAUSE THERE IS CONSIDERABLE EVIDENCE THAT COMPLAINANTS CONGREGATED
IN THE SECRETARY'S OFFICE IN AN UNORTHODOX ATTEMPT TO DEAL WITH SYLVIA
PRINCE'S GRIEVANCE, AN ARGUMENT BASED ON DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, A/SLMR NO. 582 CAN BE MADE
THAT DISCIPLINING COMPLAINANTS FOR IMPROPERLY PRESENTING A GRIEVANCE
VIOLATES SECTION 19(A)(1). IN NO. 582, A GRIEVANT SKIPPED STEP I OF HIS
CONTRACT'S GRIEVANCE PROCEDURE, AN INFORMAL MEETING WITH HIS IMMEDIATE
SUPERVISOR. HE WAS WARNED THAT SIMILAR PROCEDURAL MISSTEPS MIGHT RESULT
IN DISCIPLINARY ACTION IN THE FUTURE. THIS WARNING WAS HELD TO BE A
VIOLATION OF SECTION 19(A)(1) BECAUSE "(I)T HAS THE OBVIOUS CONSEQUENCES
OF CHILLING THE ASSERTION OF CONTRACT RIGHTS BY WARNING THOSE WHO WOULD
PURSUE THEIR CLAIMS THAT THEY DO SO AT THEIR PERIL." ID. AT 6. THE
INSTANT CASE, HOWEVER, IS DISTINGUISHABLE FROM NO. 582. D0L HAS AT THE
MOST CHILLED THE ASSERTION OF THE RIGHT TO AN AUDIENCE WITH THE
SECRETARY; DOL HAS NOT IN ANY WAY DISCOURAGED THE USE OF GRIEVANCE
PROCEEDINGS. FURTHERMORE, THIS CASE DOES NOT CONCERN TECHNICAL ERRORS
BY A GRIEVANT. COMPLAINANTS HAVE NOT MADE A TECHNICAL PROCEDURAL
MISTAKE. THEY DISREGARDED PROCEDURE ENTIRELY IN THEIR EFFORTS TO SEE
THE SECRETARY AT THEIR PLEASURE. FINALLY, THEY DID THIS DESPITE
MANAGEMENT'S EFFORTS TO INFORM THEM OF HOW TO PROCEED PROPERLY.
II. SECTION 19(A)(4)
TO PROVE THAT DOL VIOLATED SECTION 19(A)(4), COMPLAINANTS MUST SHOW
THAT DOL DISCIPLINED THEM "BECAUSE (THEY HAVE) FILED A COMPLAINT OR
GIVEN TESTIMONY UNDER (THE) ORDER." EXEC. ORDER NO. 11491, AS AMENDED,
SEC. 19(A)(4), SUPRA. SINCE DOL DISCIPLINED THE COMPLAINANTS BECAUSE
THEY CONGREGATED IN THE SECRETARY'S OFFICE, COMPLAINANTS MUST EQUATE
THAT ACT WITH FILING A COMPLAINT OR GIVING TESTIMONY UNDER THE ORDER.
THIS EQUATION CANNOT BE MADE. A COMPLAINT UNDER THE ORDER MUST BE
"SUBMITTED ON FORMS PRESCRIBED BY THE ASSISTANT SECRETARY;" IT MUST
CONTAIN A VARIETY OF INFORMATION ABOUT THE COMPLAINT AND PARTIES TO IT;
IT MUST ALSO BE SUPPORTED BY VARIOUS DOCUMENTS. SEE 29 C.F.R.
203.3(1977). COMPLAINANTS HAVE OFFERED NO EVIDENCE THAT THEY WERE
ATTEMPTING TO SUBMIT SUCH A FORM WHEN THEY ASSEMBLED IN THE SECRETARY'S
OFFICE. IT IS OBVIOUS THAT COMPLAINANTS "FILED" NOTHING WITH ANYBODY AT
THE SECRETARY'S OFFICE. THEY JUST CAME IN AND SAT FOR A TIME BEFORE
LEAVING. IT IS EVEN MORE OBVIOUS THAT COMPLAINANTS GAVE NO TESTIMONY
UNDER THE ORDER DURING THAT VISIT.
ON THE BASIS OF NLRB V. SCRIVENER, 405 U.S. 117(1972) (CONSTRUING
SECTION 8(A)(4) OF THE NATIONAL LABOR RELATIONS ACT, THE PARALLEL TO
SECTION 19(A)(4) OF THE ORDER), COMPLAINANTS COULD ARGUE THAT
DISCIPLINING EMPLOYEES FOR USING OR INVOKING UNFAIR LABOR PRACTICE
PROCEEDINGS AT A STAGE PRELIMINARY TO THE FILING OF A FORMAL COMPLAINT
VIOLATES SECTION 19(A)(4). SCRIVENER HELD THAT "AN EMPLOYER'S DISCHARGE
OF AN EMPLOYEE BECAUSE THE EMPLOYEE GAVE A WRITTEN SWORN STATEMENT TO A
BOARD FIELD EXAMINER INVESTIGATING AN UNFAIR LABOR PRACTICE CHARGE FILED
AGAINST THE EMPLOYER CONSTITUTES A VIOLATION OF SEC. 8(A)(4) OF THE
NATIONAL LABOR RELATIONS ACT." ID. AT 125. SCRIVENER'S BROAD
CONSTRUCTION OF THE NLRA WAS BASED LARGELY ON THE RATIONALE THAT A
NARROW CONSTRUCTION WOULD DEFEAT SECTION 8(A)(4)'S POLICY OBJECTIVE OF
INSURING COMPLETE FREEDOM FROM COERCION AGAINST INVOKING UNFAIR LABOR
PRACTICE PROCEEDINGS. SEE ID. AT 121-125. EVEN IF SCRIVENER'S
RATIONALE APPLIES TO CASES UNDER THE ORDER, /11/ IT DOES NOT HELP THESE
COMPLAINANTS. THEY HAVE NOT EVEN SUGGESTED THAT THEY WERE FILING OR HAD
FILED A PRE-COMPLAINT "CHARGE IN WRITING." SEE 29 C.F.R. 203.2(1977).
THE EVIDENCE DOES NOT INDICATE THAT THEY INTENDED TO INVOKE UNFAIR LABOR
PRACTICE PROCEEDINGS REGARDING WHATEVER MATTERS BROUGHT THEM TO THE
SECRETARY'S OFFICE. INDEED, THEY DISREGARDED PROPER PROCEDURES EVEN
THOUGH MANAGEMENT HAD TOLD EARL SIMPSON AND SYLVIA PRINCE WHAT THE
CORRECT PROCEDURES WERE. CERTAINLY, COMPLAINANTS DID NOT PROVE THAT
DOL'S ACTIONS INTIMIDATED ANYONE SO AS TO PREVENT THE FILING OF UNFAIR
LABOR PRACTICE CHARGES. DOL DID NOT VIOLATE SECTION 19(A)(4), SINCE IT
DID NOT DISCIPLINE THE COMPLAINANTS FOR FILING A COMPLAINT OR GIVING
TESTIMONY UNDER THE ORDER UNDER ANY REASONABLE CONSTRUCTION OF THOSE
TERMS.
RECOMMENDATION
I RECOMMEND THAT EACH OF THE FIVE COMPLAINTS BE DISMISSED IN ITS
ENTIRETY.
DECEMBER 14, 1978
DATE
JOHN J. MCCARTHY
ADMINISTRATIVE LAW JUDGE
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/3/ THE RELEVANT PROVISIONS READ AS FOLLOWS:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED
BY THIS ORDER;
(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD
TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT;
. . . .
(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
HE HAS FILED A
COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER;
/4/ THE OCCURRENCE OR DETAILS OF A SIT-IN ON MAY 11, 1977, ARE NOT
SUBSTANTIATED IN THE RECORD.
/5/ TAYLOR EQUIVOCATED, INDICATING AT A LATER POINT THAT THE
GRIEVANCE WAS THAT OF ANOTHER EMPLOYEE WHOSE IDENTITY HE COULD NOT
RECALL. SIMPSON STATED THAT HE WORKED ON TAYLOR'S GRIEVANCE IN THE
AFTERNOON.
/6/ SARAH HARPER ARRIVED AT THE UNION OFFICE AT 12:15 P.M.
/7/ COPELAND'S CREDIBILITY IS CASE IN DOUBT BY HIS STATEMENT THAT HE
DID NOT GO TO THE UNION OFFICE-- THIS CONTRADICTS HIS OWN COMPLAINT, THE
TESTIMONY OF THE OTHER FOUR COMPLAINANTS, AND HIS OWN LATER TESTIMONY.
HE ALSO TESTIFIED THAT HE MADE THE CALL TO THE UNION OFFICE WHILE HE WAS
IN THE OFFICE OF THE SECRETARY; MR. WOOD CONFIRMED THIS IN HIS
TESTIMONY.
/8/ THERE IS CONFLICTING TESTIMONY AS TO THE TIMING OF EVENTS AFTER
THIS POINT. COMPARE TR. 210 AND 286-89 (SCHELL AND MS. RANDOLPH, A
RECEPTIONIST, RECALLING THAT ALL FIVE COMPLAINANTS WERE IN THE
SECRETARY'S OFFICE ABOUT 11:30 A.M.) WITH TR. 67, 98-99, 79 (WOOD,
SIMPSON AND TAYLOR CLAIMING THEY LEFT THE UNION OFFICE ABOUT 11:55 A.M.
AND ARRIVED AT THE SECRETARY'S OFFICE ABOUT 12:00). EXACT TIMING OF
EVENTS IS NOT NECESSARY TO THE RESOLUTION OF THIS CASE.
/9/ SUCH REPRIMANDS ARE PROPER SO LONG AS THEY INVOLVE NO
DISCRIMINATION BASED SOLELY ON UNION MEMBERSHIP. SEE TENNESSEE VALLEY
AUTHORITY, A/SLMR NO. 509
/10/ DOL CONTENDS, AS AN "AFFIRMATIVE DEFENSE," THAT COMPLAINANTS
WERE THEMSELVES GUILTY OF AN UNFAIR LABOR PRACTICE VIOLATING SECTION
19(B)(4) OF THE ORDER (PROHIBITING CALLING, ENGAGING IN, OR CONDONING A
WORK STOPPAGE). WHETHER DOL'S CONTENTION IS CORRECT NEED NOT BE DECIDED
IN LIGHT OF THE CONCLUSIONS REACHED IN THIS OPINION. RATHER THAN
CLAIMING AN AFFIRMATIVE DEFENSE, IT WOULD SEEM MORE APPROPRIATE FOR DOL
TO CLAIM THAT COMPLAINANTS DID NOT LEAVE THEIR JOB SITES TO EXERCISE
RIGHTS PROTECTED BY THE ORDER. IN OTHER WORDS, IT IS NOT A DEFENSE TO
THE INSTANT COMPLAINT TO SHOW THAT THE AGENCY'S ACTION WAS PROMPTED BY
COMPLAINANTS' ACTIVITY IN VIOLATION OF THE ORDER, SINCE ONE UNFAIR LABOR
PRACTICE DOES NOT JUSTIFY ANOTHER. SEE TENNESSEE VALLEY AUTHORITY,
A/SLMR NO. 509 (FINDING MANAGEMENT INTERFERENCE VIOLATING SECTION
19(A)(1) DESPITE UNION WORK STOPPAGE VIOLATING SECTION 19(B)(4)).
/11/ SCRIVENER SHOULD BE CONSIDERED FOR ITS INTERPRETATION OF THE
NLRA, BUT IT IS NOT BINDING PRECEDENT UNDER THE ORDER. SEE A/SLMR NO. 1